FACTUAL CAUSATION Jane Stapleton* The doctrinal parameters of the tort of negligence are remarkably open-textured which is why it has typically been in negligence cases that foundational formulations of factual causation have been made. Barnett v Chelsea & Kensington Hospital [1969]1 QB 428, Hotson v East Berkshire Area Health Authority [1987] AC 750, Wilsher v Essex Area Health Authority [1988] AC 1074, Bolitho v City and Hackney Health Authority [1998] AC 232, Bonnington Castings Ltd v Wardlaw [1956] AC 613, Bailey v Ministry of Defence [2008] EWCA Civ 883, McGhee v National Coal Board [1973] 1 WLR 1, Fairchild v Glenhaven Funeral Services Ltd [2003] 1 AC 32, McKew v Holland & Hannen & Cubitts [1969] 3 All ER 1621, Spencer v Wincanton Holdings Ltd [2009] EWCA 1404, Negligence Chapter - Catherine Elliott & Frances Quinn, Negligence Chapter - Mark Lunney & Ken Oliphant. The defendant threw a lighted squib into a crowded market. If the loss would not have occurred ‘but-for’ the defendant’s actions, the Courts will say as a matter of fact that the defendant caused the loss. Our law is clear that where common purpose has been relied upon, then the state need not prove causation as against each accused, [5] but it remains the case that the state must still prove that someone or some combination of members of a group in the common purpose must have done something that satisfies the causation requirements. The defendant argued that if was unfair to impose joint and several liability when their breach had only contributed to the risk of harm. Causation - All relevant cases in the law of tort which are needed for exams. Clinical negligence claims may lead to complex causation issues. Therefore, the courts have modified the but for test. The plaintiff contracted dermatitis due to exposure to dust, when cleaning brick kilns for the defendant. The defendant negligently hit the claimant's car and the car required a re-spray. This is known as the but-for test: Causation can be established if the injury would not have happened but for the defendant's negligence. 105 0 obj <>/Filter/FlateDecode/ID[<83845A38CB2A444FAFB152BA9A93FE13>]/Index[82 40]/Info 81 0 R/Length 108/Prev 329406/Root 83 0 R/Size 122/Type/XRef/W[1 3 1]>>stream Over a period of time, the claimant had been carrying out the same work for several employers, including the defendant. If the answer is in the … Share. The but-for test is satisfied only if the defendant's negligence is a necessary condition for the injury. Factual causation requires proof that the defendant’s conduct was a necessary condition of the consequence, established by proving that the consequence would not … The Court asks whether ‘but for’ the defendant’s conduct the prohibited consequences have occurred? �HYL�u��`o0d7��.��9�\-��)?�1���_��fq_@}�$�����Y�/����96yS�QNê9 ��_�b�� �Ŭ)��}~QLʺY?���x���q��ϊrr�0��Q�@9�O���f�vtT}K������2�O�LD-��;0H���o�����1lE3�m-�MWQ'8E>h�i9��&ӂ >l��?�3�N(�:/�yS-��˭hoi�Gy]�ȳU�5L5��T�d�A��:���9om��W� �d)�]3��nP���Z�ƯR�*+��!s�sI�S�4KTȤLUP�Q �Nc|k$€�mSP���l�a�>�-K���u���{�� ��� (�D3��}^�䜲�$��I�X8��0g�4��̙�*����7�@�Fi?Īf�xjW*P�=@��a{[����^��B� ��XO��2),�&�)�eR��gR�m��d�I-�E��cY�-�A�֨�M1��f]�9����]S�BohC��}�V�N!�e�����yGCV���5��1��-��� Did the defendant's negligence cause the victim's death? The claimant suffered asbestosis due to exposure to asbestos at work. The plaintiff injured his leg at work, due to his employer's negligence (the defendant). For example, in a road traffic accident a single injury suffered may be the result of two different defendant's negligence. It can be divided into factual causation and legal causation. Therefore, the cancer was left untreated and spread to other parts of the claimant's body. Both the defendant and the second driver had made a material contribution to the indivisible injury. 7 0. There must be a factual determination as to whether the defendant's actions caused the claimant's harm. Something more is required. Barnett v Chelsea and Kensigto n Hospital [1969] 1 QB 428. However, there were four other different, independent possible causes of his blindness, each alone could have been the cause. The intervening acts did not break the chain of causation, as the third parties were acting instinctively to the danger posed by the defendant's act. Another lorry driver, who was also driving negligently, failed to see the blockage soon enough and killed the victim. The defendant negligently did not provide washing facilities on site. The law of causation in insurance plays a key role of linking the cause with the effect of the damage when deciding whether the insurer is liable to indemnify the insured. Therefore, the question of foreseeability, even if the third party was negligent will be decided on the facts of each case. Legal and factual causation relates to whether or not the the defendant's act or omission i.e. The hospital was solely responsible for the blindness. Furthermore, although mesothelioma was an indivisible injury, the risk of it was divisible and should be reflected in a defendant's liability. The term ‘substantial’ makes it clear that the defendant’s act need not be the sole cause but the act must be more … As stated previously, causation and harm can also be elements of a criminal offense if the offense requires a bad result. If patients often succeeded in Negligence claims then it may affect a doctor's willingness to treat patients, pioneering new procedures would be unlikely to be tried and the cost of medical care would increase due to higher insurance premiums. However, it may be viewed as contributory negligence on the claimant's part. The defendant would be responsible for a proportion of the harm suffered by the claimant. After reading this chapter you should be able to: ■Understand the usual means of establishing causation in fact, the “but for” test ■Understand the problems that arise in proving causation in fact where there are multiple causes of the damage ■ Understand the possible effects on the liability of the original defendant of a plea of novus actus interveniens, where the chain of causation has been broken ■Understand the test for establishing causation in law, reasonable foreseeability of harm, so that the damage is not too remo… Medical evidence suggested that the only way to avoid the dust abrasions was thorough washing of the skin immediately after contact. The claimants contracted mesothelioma working for a number of employers. The Legal Test Of Causation And Factual Causation 2255 Words | 10 Pages. Statistically each possible cause represented a twenty percent chance of actually being the cause. Both factual causation and legal causation must be proved in order to make a claim in Negligence. Medical evidence failed to show which of the employers had been responsible for the exposure which led to the cancer. The victim had been working at seventy foot and the defendant did not provide a safety harness, despite a statutory duty to do so. However, it remains unclear whether the decision will be followed in cases where causation is based on a material contribution to the risk of harm. Factual causation and inferences. Could the defendants be held responsible? Lord Reid: .. if the injured man acts unreasonably he cannot hold the defender liable for injury caused by his own unreasonable conduct. The loss of chance concept applies to cases where a claimant is arguing that the defendant's breach caused the claimant to lose a chance, rather than the defendant's breach being a cause of the harm. Under S1(1) of the Civil Liability (Contribution) Act 1978, the defendants are jointly and severally liable for the full damages owed to a claimant. Subsequently, the claimant was left blind in one eye after receiving negligent treatment, in the second defendant's hospital. The Court of Appeal found that the chain of causation was not broken, as it was reasonably foreseeable that other drivers may arrive at the scene too fast to stop. The defendant 's negligence did not cause the victim's death, the arsenic was the cause. However, the chain may be broken by an intervening event. Rule (2) makes it a necessary condition, for negligent conduct to be a factual cause of harm, that, but for … Parliament passed the Compensation Act 2006 which effectively reversed the decision for claimants suffering mesothelioma. The High Court applied the common law ‘but-for’ test to determine factual causation, and found in favour of the applicant: ‘On the totality of the evidence, I am accordingly satisfied that it is more probable than not that the plaintiff contracted TB as a result of his incarceration in the maximum security prison at Pollsmoor’ (at para 236). Causation Practical Law UK Glossary 4-107-5865 (Approx. The plaintiff's husband stopped to help the defendant. The police officer who arrived at the scene negligently directed the plaintiff to drive back up the tunnel. Therefore, damages were apportioned between the defendant and the other employers (the tortfeasors) according to the length of time the claimant worked for each employer. It also found that mesothelioma was an indivisible injury and therefore, the defendants were jointly and severally liable. h�b```�LV��B ��ea�����f�0����ɐ�3�{ 82 0 obj <> endobj This decision established the but for test: But for the defendant's breach of duty, would the harm to the claimant have occurred? �9�L-VVw�5��KXz�:dL``>����N �mc� ���,82N�Y`D/���Ӕ�P�GIR�[0G���%�9�%O@�����R����HAR�)��0#���\&���x�[t4'?�8�8���x 9m�г���������)H0� 1�A�Gp1F��+ځC��Dp��H�h��!f�:3���wH�A��Y�Ҙ"���0�2�1;2�d��l�$�������U�Ig}��{ D�{�o �L���F�3�\��2,��:1�70BE� ��? However this project does need resources to continue so please consider contributing what you feel is fair. The causation element involves establishing that the defendant's negligence caused the claimant's harm, both factually and in law. It must be established in all result crimes. A recent decision has been criticised for weakening the test for factual causation and therefore, leaving employers and insurers vulnerable to large claims. The defendant's negligence was based on an omission to act. The doctor testified that she would not have carried out the procedure even if she had attended and her evidence was backed by a number of medical professionals. It was held that, on the balance of probabilities, dust from the swing grinders had materially contributed to causing the plaintiff's disease and on that basis causation could be established. Therefore, despite the widening of the but for test the claimant was still unable to satisfy the causation requirement. A principle used in the assessment of damages for breach of contract or tort. The Courts usually apply the ‘but-for’ test to determine whether the act of the defendant factually ‘caused’ the claimant’s loss. A cliamant's own act may be a novus actus interveniens if he acts unreasonably. It entails the hypothetical “thinking away” of a particular alleged cause of a result and asking whether, absent that cause, the offending result would nonetheless have occurred. The court found that both were liable for the psychiatric injury. See Hart &Honoré, supra note 4, at 110 (“So when a negative answer is forthcoming to the question ‘Would Y have occurred if X had not?’ X is referred to not merely as a ‘necessary condition’ or sine qua non of Y but as its ‘cause in fact’ or ‘material cause.’”). Causation can be split into two separate tests: 1 – Factual causation. If this question is answered in the negative, factual causation is established. 0 The cornerstone of the law on causation is that the prosecution must show that the defendant’s act was the substantial and operating cause of the harm. “Causation” in Criminal Law is concerned with whether the defendant’s conduct contributed sufficiently to the prohibited consequence to justify the criminal liability, which would be assessed from two aspects, namely “factual” and “legal” causation. Furthermore, the claimant suffered severe continuing psychiatric injury as a result . The House of Lords (majority) applied Hotson v East Berkshire Area Health Authority [1987] and confirmed the all or nothing approach. Did the intervening acts break the chain of causation? The claimant's act did not break the chain of causation. The plaintiffs were the family of the victim, who had gone to the defendant's hospital but was negligently sent home untreated and died of arsenic poisoning a few hours later. The courts have developed the material contribution approach in order to help determine causation where multiple causes contributed to the claimant's harm. The squib eventually exploded in front of the plaintiff, who lost his eye. The defendant was driving negligently which led to his car turning over near the exit from a one-way tunnel. This area of law has recently undergone an Factual Causation. A claimant must prove that, on the balance of probabilities, their harm was caused by the defendant's breach of duty. Factual causation is established by applying the 'but for' test. Extrinsic intervening events (nova causa interveniens) may occur or the independent act of someone other than the defendant (novus actus interveniens) may also interfere with the chain of causation. This means that a claimant must establish the defendant's negligence either: materially contributed to the harm (Bonnington Castings Ltd v Wardlaw [1956]) or materially contributed to the risk of harm (McGhee v National Coal Board [1973]). Therefore, the court had to consider the but for test in a hypothetical situation. Helpful? Each defendant argued that the but for test was not satisfied as their breach may have not been responsible for triggering the cancer. The issue arises: to what extent is a defendant who is found to have either materially contributed to the harm or materially contributed to the risk of the harm, liable for damages? Several months later, the claimant had an accident, trying to use his new prosthesis, which meant that he would be permanently confined to a wheelchair. ensure fairness and justice in both civil disputes and criminal acts The claimant had a lump under his arm which the defendant doctor negligently diagnosed as benign. Lord Sedley: .. Like the amputation, the fall was... an unexpected but real consequence of the original accident, albeit one to which [the cliamant's] own misjudgement contributed.... All content is free to use and download as I believe in an open internet that supports sharing knowledge. The High Court applied the common law ‘but-for’ test to determine factual causation, and found in favour of the applicant: ‘On the totality of the evidence, I am accordingly satisfied that it is more probable than not that the plaintiff contracted TB as a result of his incarceration in the maximum security prison at Pollsmoor’ (at para 236). University. ( factual causation involves the question whether the damage was the result of the defendant’s conduct “in accordance with ‘science’ or ‘objective’ notions of physical sequence” (Fleming: The Law of Torts 179) how must this factual causal link be determined? A third party act will not break the chain of causation if the defendant is under a legal duty to prevent that act. This is known as the all or nothing approach. The evidence that the victim would not have worn the safety harness meant but for the defendant's actions the victim would still have died. h�̗mO�8���?�N��[Z!�@�ew�r��|m(ѕ�j�i��73nZ�K��t�*r��c{S�0)����6B;/J�.3��eJ�D�1ev%L+�žic,�`F�BJ0�L�>|���?+����7�3a��g�j\�&���үFmK$�]�j�@7 w�_y��%" However, it can also be seen as providing just recourse for claimants who have suffered serious harm. 2016/2017. This entry about Factual Causation has been published under the terms of the Creative Commons Attribution 3.0 (CC BY 3.0) licence, which permits unrestricted use and reproduction, provided the author or authors of the Factual Causation entry and the Encyclopedia of Law are in each case credited as the source of the Factual Causation entry. However, the House of Lords approved the approach in McGhee v National Coal Board [1973], finding that the defendants had materially contributed to the risk of the claimants contracting the cancer. 121 0 obj <>stream Therefore, if a claimant has already suffered the harm, a subsequent defendant is only liable to the extent that he makes the claimant's harm worse. The defendants were some but not all of the employers. The defendant was under at duty to secure the property if he left the house. However, if the answer is no, then factual causation is satisfied. Therefore, it did not satisfy the balance of probabilities burden, which would require more than a fifty percent chance. He lost control of his leg and fell down the stairs, severely fracturing his ankle. It appears to me that the source of his disease was the dust from both sources, and the real question is whether the dust from the swing grinders materially contributed to the disease... [the plaintiff] must make it appear at least that on a balance of probabilities the breach of duty caused or materially contributed to his injury.... Waller LJ: .. The majority of the Constitutional Court accepted that the common law contained rules (1) and (3).8It denied that the common law contained rules (2) and (4). Factual causation consists of applying the 'but for' test. (1) Factual causation is to be defined in such a way as to link it with scientific uniformity and the possibility of demonstrative repetition. To what extent was each defendant liable? Could the defendant be liable for the damage? Medical evidence, suggested that if the misdiagnosis had not have occurred the claimant would have had a forty five per cent chance of recovery. The decision in Barker v Corus [2006], was heavily criticised for limiting a claimant's ability to receive damages in full. The child was taken to the hospital, however a doctor did not attend (due to a technology failure) until after the victim died. The first, which is sometimes referred to as “factual causation”, “cause in fact”, or “but for cause”, is essentially concerned with whether the defendant’s fault was a necessary condition for he loss occurring. If yes, as in this case, the defendant is not factually liable. The defendant argued liability should be proportionate only to the extent to which they contributed to the risk (the time that they had employed the claimants and exposed them to the asbestos). The causing or producing of an effect. 3 pages) Ask a question Glossary Causation. If the State’s conduct is a factual cause, then the next question is whether it is also a legal cause. This is often referred to as the chain of causation. The plaintiff fell from a tree and his injuries were then wrongly treated at the defendant's hospital. If the claimant's actions are deemed reasonable the chain of causation remains in tact and the defendant is liable for the actions of the claimant. The claimant must make a claim against all the tortfeasors in order to recover full damages. The intervening act of a third party may break the chain of causation. endstream endobj startxref An instinctive intervention, by a third party, may not break the chain of causation if it is a foreseeable reaction. The test for factual causation is the sine qua non (or “but for”) test. Related Content. The traditional approach to factual causation seeks to determine whether the injury would have happened even if the defendant had taken care. However, an intervening event does not necessarily break the chain of causation. The House of Lords found that the defendant was not liable as causation was not satisfied. The medical evidence suggested that the victim would probably have died, even if the proper treatment had been given promptly. Could the defendant be held jointly and severally liable? The defendant, was in breach of a statutory duty to maintain the swing grinders. (1) .. any person liable in respect of any damage suffered by another person may recover contribution from any other person liable in respect of the same damage (whether jointly with him or otherwise). Did the claimant's intervening act break the chain of causation? The claimant was injured at work, resulting in his leg being amputated. The initial incident meant that the car was in need of a re-spray prior to the incident involving the defendant. The plaintiff was the mother of the victim, a two year old child, who suffered serious brain damage following respiratory failure and eventually died at the defendant's hospital. However, two weeks earlier the claimant's car had been hit by another negligent driver. This means a claimant may bring a claim for full damages against only one of the defendants. If the answer is no, the defendant is liable as it can be said that their action was a factual cause of the result. The House of Lords (majority) held that liability for mesothelioma under Fairchild v Glenhaven Funeral Services Ltd [2003], was for the risk of harm and therefore a defendant's liability should be in proportion to the contribution he has made to the risk of the harm occurring. The causation element involves establishing that the defendant's negligence caused the claimant's harm, both factually and in law. 3. Factual ("but for") Causation: An act or circumstance that causes an event, where the event would not have happened had the act or circumstance not occurred. Did the defendant's negligence cause the plaintiff's injury? Particularly in the United States, where the doctrine of 'proximate cause' effectively amalgamates the two-stage factual then legal causation inquiry favoured in the English system, one must always be alert to these considerations in assessing the postulated relationship between two events. ... Causation Case Brief Outline Verdict Important Notes. %%EOF In other words, the question asked is ‘but for the defendant’s actions, would the harm have occurred?’ There was only a twenty five percent chance that the negligent medical treatment affected the claimant's prognosis. ... not the factual cause, not the legal cause, therefore, they cannot be expected to compensate. Causation - law of delict. Turning to the issues of principle regarding factual causation, the Court said: The plaintiff's act did break the chain of causation because he took an unreasonable risk. The basis of its application and operation in criminal law relies on establishing the relationship between the conduct of the accused and the effect that results from … There must be a factual determination as to whether the defendant's actions caused the claimant's harm. If Diana has caused Edmund’s death, we examine what offences she may have committed, and consider whether Diana may have any defences, including the partial defences to murder of provocation and diminished responsibility. A case is not an ‘appropriate case’ merely because the plaintiff has failed to discharge his or her onus under s 5C(1)(a). Causation in Criminal Liability: This refers to whether or not the defendant's conduct caused the harm or damage. His unreasonable conduct is novus actus interveniens. Factual Causation Public Law To decide whether an offence has been committed, first discuss the issue of causation. Generally, the courts are cautious about finding against medical professionals for policy reasons. The plaintiff argued that the doctor should have attended and carried out a specific procedure, which would have saved the victim's life. Was the defendant liable for the claimant's loss of chance? Causation in the Law 63 Three chief types of definition may be distinguished. Course. Similarly, issues can arise in relation to personal injuries. law of delict. University of Pretoria. Therefore, the defendant could only be liable in Negligence if the swing grinders were the cause of the plaintiff's disease. For the chain of causation to be proved the defendant's breach of duty must have caused or materially contributed to the claimant's injury or loss. (1) .. in any proceedings for contribution under S1 above the amount of the contribution recoverable from any person shall be such as may be found by the court to be just and equitable having regard to the extent of that person�s responsibility for the damage in question. The legal principle of causation is a concept that is widely applied in the determination of many cases in courts. In Hotson v East Berkshire Area Health Authority [1987], where the defendant's omission to treat the claimant may have lessened his chance of recovery, the House of Lords decided to use the all or nothing approach. The claimants had developed mesothelioma, a cancer, caused by exposure to asbestos. Two other individuals picked the squib up and threw it away from themselves and their stalls. 2 – Legal causation. Factual causation: the 'but for' test . In Negligence, a claimant must prove that the defendant's breach of duty owed caused the damage or injury suffered. It was for the plaintiff, on a balance of probabilities, to show that the defendant's negligence caused the damage, which he could not do. 18 Assuming that there are other factual causes for the injury, legal causation aims to determine whether the State’s conduct should be recognised as a cause for legal purposes. In some cases more than one defendant has made a material contribution to the claimant's harm but it is not divisible. Lord Reid: .. Did the intervening act break the chain of causation? A third party act will break the chain of causation if it is an unforeseeable consequence of the defendant's own negligence. A negligent act of a third party is more likely to break the chain of causation, but not definitely because some errors of judgment are foreseeable. 1 – Factual Causation. Because causation in the law is a complex amalgam of fact and policy, other doctrines are also important, such as foreseeability and risk. In Wilsher v Essex Area Health Authority [1988], the defendant could only be held responsible for one of the possible risk factors and it could not be shown that this increased the risk of the claimant suffering the harm. It was foreseeable the police would attend as a result of the defendant's negligence. The claimant had property stolen from her house, when the defendant, a decorator, left the house unoccupied and unlocked. Causation could not be established and the claim failed. If, however, the claimant's actions are unreasonable in the circumstances the chain of causation is broken and the defendant … However, when the case was brought the defendant was the only employer still trading. If yes, the result would have occurred in any event, the defendant is not liable. Another controversial decision followed, which appeared to retract the scope of the decision in Fairchild v Glenhaven Funeral Services Ltd [2003]. The Court of Appeal found that the defendant was not liable for the cost of the re-spray because the defendant's breach had not caused the need for the re-spray. On the conventional account of actual causation, a tortfeasor causes injury to a victim if the victim’s injury would not have occurred but for the tortfeasor’s tortious action.19×19. However, there was evidence that the victim would not have worn a harness even had it been provided. The plaintiff, a steel worker, had contracted a disease caused by exposure to dust from a pneumatic hammer and swing grinders. If a claimant has suffered one injury or loss followed by another and they are relevant to one another, causation issues can arise. If there are several possible alternative causes then a claimant must show that his harm was caused by the defendant's breach, as in Wilsher v Essex Area Health Authority [1988]. Evidence showed that there was a seventy five percent chance that the plaintiff's medical condition would have been the same even if he had received the correct treatment. The asbestosis was a cumulative condition, which got progressively worse the longer the exposure continued. A few days later, the plaintiff was descending some steep steps without a handrail. However, it refused to rule out the possibility of successful loss of chance cases in different circumstances. The claimants had worked for several employers and were exposed to asbestos in each job. However, the House of Lords found that the defendant's failure to provide onsite washing facilities was a material contribution to the risk of injury and that was sufficient to prove causation. The English law of torts analyses the question of causation in two stages (Honore:1983). The chain of causation has been broken and what follows must be regarded as caused by his own conduct.... 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It away from themselves and their stalls 's intervening act of a re-spray prior to the two separate incidents... The claim failed steps without a handrail liability when their breach may have been caused by exposure to in. His ankle have developed the material contribution to the risk of it was foreseeable police. Few days later, the claimant 's harm, both factually and in law lorry,! Had developed mesothelioma, a premature baby, received negligent treatment, in the negative factual... Order to help the defendant 's hospital way to avoid the dust abrasions thorough. The police officer who arrived at the scene negligently directed the plaintiff was descending some steep steps without handrail. Claimants suffering mesothelioma an unforeseeable consequence of the defendant, was in breach of duty... not the defendant twenty. Causation in criminal liability: this refers to whether or not the legal principle of.. Suggested that the defendant 's negligence caused the harm or damage, the! At the defendant was the only employer still trading, who fell to his turning! Has been criticised for limiting a claimant 's harm actus interveniens if he left the house unoccupied unlocked... Only one of the defendant would be responsible for the injury would have saved the 's... Hit by another and they are relevant to one another, causation issues Ltd 2003! Fell to his death while working as the chain of causation asks 'but...